NO. 12-15-00149-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: CHARLES DWAYNE

LANKFORD AND ROBERTA

GRESHAM, RELATORS

§

§

§

ORIGINAL PROCEEDING

OPINION

Charles Dwayne Lankford and Roberta Gresham seek mandamus relief from the trial 

court’s May 12, 2015 orders overruling their pleas to the jurisdiction and Lankford’s motion to 

dismiss, and designating Stephanie Smith as a joint managing conservator of T.D.L.1 We deny the 

petition.

BACKGROUND

T.D.L. is the fourteen year old biological child of Charles Dwayne Lankford and Karla 

Frith, who were divorced in 2003. T.D.L. started living with Lankford when she was three months 

old after Lankford and her biological mother separated. From 2003 until sometime in 2007, 

Lankford worked “outside of the States.” During that time, Roberta Gresham, who is Lankford’s 

mother and T.D.L.’s grandmother, lived in Lankford’s house with T.D.L. 

Lankford and Stephanie Smith married in 2008, but had been together since sometime in 

2007. T.D.L. was approximately five years old when the relationship began. From 2007 to 2012, 

Lankford worked out of town, and was away from home between fifty and eighty percent of the 

time. Smith and T.D.L. remained in the family home. In July 2012, Lankford began working in 

Afghanistan.2 According to Lankford, this was “a decision by [him] that [he and Smith] discussed 

 

1 The respondent is the Honorable Joe Lee Register, Judge of the County Court at Law No. 1, Angelina 

County, Texas.

2

 According to the record, Lankford still works in Afghanistan.
2

and agreed upon.” Lankford elected expatriate status, which prohibits him from being in the 

United States more than thirty-five days a year. Smith and T.D.L. again remained in the family 

home. 

In November 2014, Smith filed for divorce at Lankford’s request. Her petition included a 

motion to modify the existing conservatorship order to appoint Smith and Lankford as joint 

managing conservators of T.D.L. Smith also requested that she be designated as the conservator 

having the exclusive right to designate T.D.L.’s primary residence. She alleged that she has 

standing under Texas Family Code Section 102.003(a)(9) to seek modification of the order. 

Through various errors and misunderstandings that occurred in prior proceedings, the 

existing conservatorship order, which was rendered in 2004, made Gresham managing conservator 

and Lankford and Frith possessory conservators. However, Lankford believed the three were joint 

managing conservators. He also believed that he had the right to designate T.D.L.’s residence. 

In December 2014, Lankford and Gresham filed a motion to modify the 2004 order to make 

them joint managing conservators.3 Additionally, they asserted that Smith’s motion to modify 

must be filed in the pre-existing suit affecting the parent-child relationship (SAPCR). Smith 

moved to sever the conservatorship issue and consolidate it with the SAPCR. The trial court 

granted the motion. Lankford filed a plea to the jurisdiction and motion to dismiss alleging Smith 

lacked standing. Gresham raised the issue in her answer. After a hearing, the trial court concluded 

that Smith has standing under section 102.003(a)(9) and, by written order, overruled the pleas to 

the jurisdiction and the motion to dismiss. The trial court also rendered temporary orders 

designating Smith as a joint managing conservator of T.D.L. This original proceeding followed.

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy that is available only when the trial court has clearly 

abused its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 

148 S.W.3d 124, 135-36, 137 (Tex. 2004) (orig. proceeding). A clear abuse of discretion occurs 

when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and 

prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). 

 

3

 Lankford and Gresham discovered the error in 2009, and Lankford sought modification at that time. However, that 

proceeding was ultimately dismissed for want of prosecution after the temporary orders expired.
3

A trial court has no discretion in determining what the law is or applying the law to the facts. Id. 

Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an 

abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.

The improper denial of a plea to the jurisdiction is generally not reviewable by mandamus 

because it involves a question of law that can be addressed by ordinary appeal. See In re State 

Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). However, mandamus review is 

appropriate when there is a jurisdictional dispute in a proceeding involving conservatorship issues. 

See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig. proceeding); In re Green, 352 S.W.3d 

772, 774 (Tex. App.—San Antonio 2011, orig. proceeding). This is due to the unique and 

compelling circumstances presented when the trial court decides issues of conservatorship. See 

Geary, 878 S.W.2d at 603. Because temporary orders are not appealable, mandamus is an 

appropriate remedy when a trial court abuses its discretion in issuing temporary orders in a SAPCR. 

See In re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding). 

STANDING

A party seeking conservatorship of a child must have standing to do so. In re McDaniel, 

408 S.W.3d 389, 396 (Tex. App.–Houston [1st Dist.] 2015, orig. proceeding). Because standing 

is implicit in the concept of subject matter jurisdiction, it is a threshold issue in a conservatorship 

proceeding. In re N.L.D., 344 S.W.3d 33, 37 (Tex. App.–Texarkana 2011, no pet.). A party’s lack 

of standing deprives the court of subject matter jurisdiction and renders subsequent trial court 

action void. In re Smith, 260 S.W.3d 568, 572 (Tex. App.–Houston [14th Dist.] 2008, orig. 

proceeding). 

Whether a trial court has subject matter jurisdiction is a question of law, which we review 

de novo. In re K.D.H., 426 S.W.3d 879, 882 (Tex. App.–Houston [14th Dist.] 2014, no pet.). In 

our review, we must take as true all evidence favorable to the challenged party, indulge every 

reasonable inference, and resolve any doubts in the challenged party’s favor. McDaniel, 408 

S.W.3d at 397. 

The Texas Legislature has provided a comprehensive framework for standing in the context 

of suits involving the parent-child relationship. See TEX. FAM. CODE ANN. §§ 102.003–.007 (West 

2014 & Supp. 2016). When standing has been statutorily conferred, the statute itself serves as the 
4

proper framework for the standing analysis. In re H.G., 267 S.W.3d 120, 123 (Tex. App.–San 

Antonio 2008, pet. denied). Thus, the party seeking relief must allege and establish standing within 

the parameters of the language used in the relevant statute. Id. at 124.

We review the trial court’s interpretation of the applicable statutes de novo. In re Russell, 

321 S.W.3d 846, 856 (Tex. App.–Fort Worth 2010, orig. proceeding [mand. denied]). We must 

give effect to the legislature’s intent from the language used in the statute and not look to 

extraneous matters for an intent the statute does not state. In re Shifflet, 462 S.W.3d 528, 536 

(Tex. App.–Houston [1st Dist.] 2015, orig. proceeding). We presume that the legislature chooses 

a statute’s language with care, and includes each word chosen for a purpose while purposefully 

omitting words not chosen. In re M.N., 262 S.W.3d 799, 803 (Tex. 2008). We use definitions 

prescribed by the legislature and any technical or particular meaning the words have acquired. 

TEX. GOV’T CODE ANN. § 311.011(b) (West 2013). Otherwise, we construe the statute’s words 

according to their plain and common meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 626 

(Tex. 2008). If the meaning of the statutory language is unambiguous, the interpretation supported 

by the plain meaning must be adopted. Shifflet, 462 S.W.3d at 536. 

TEXAS FAMILY CODE SECTION 102.003(a)(9)

A person who, at the time of filing, has standing to sue under Chapter 102 of the family 

code may seek modification of an existing conservatorship order. TEX. FAM. CODE ANN.

§ 156.002(b) (West 2014). A person has standing to sue under Chapter 102 if, as alleged here, she 

is not a foster parent and “has had actual care, control, and possession of the child for at least six 

months ending not more than 90 days preceding the date of the filing of the petition.” Id.

§ 102.003(a)(9) (West Supp. 2016). A determination of standing under subsection (a)(9) is 

necessarily fact-specific and must be made on a case-by-case basis. Shifflet, 462 S.W.3d at 538; 

In re M.P.B., 257 S.W.3d at 809. The purpose of subsection (a)(9) is to create standing for those 

who have developed and maintained a relationship with a child over time. In re E.G.L., 378 

S.W.3d 542, 547 (Tex. App.–Dallas 2012, pet. denied); In re Y.B., 300 S.W.3d 1, 4 (Tex. App.–

San Antonio 2009, pet. denied); see also T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex. App.–San 

Antonio 1992, no writ) (explaining that purpose of former version of section 102.003(a)(9) was to 
5

“create standing for those who have developed and maintained a relationship with the child over 

time”).

ACTUAL CONTROL–THE SPLIT OF AUTHORITY

Lankford and Gresham do not dispute that Smith had care and possession of T.D.L. for the 

required time period. Nor do they argue that Smith lacks standing under the trial court’s 

construction of the statute. Instead, they assert that the trial court applied an incorrect definition 

of “control” as that term is used section 102.003(a)(9). As a result, they maintain, the trial court 

abused its discretion when it ruled that Smith has standing under subsection (a)(9). 

“Control” is not defined in the family code, and neither the Texas Supreme Court nor this 

Court has defined the term in this context. Consequently, Lankford and Gresham have surveyed 

the cases defining or applying the term as used in section 102.003(a)(9). They inform us that the 

cases are sometimes said to represent two lines of authority among the courts of appeals, differing 

principally on what constitutes “control” over the child. 

Legal Control Required 

Lankford and Gresham insist that to have standing under subsection (a)(9), Smith must 

establish that she has had “legal control” over T.D.L. They urge that she has not met this burden. 

As support for their position, they cite In re K.K.C., 292 S.W.3d 788 (Tex. App.–Beaumont 2008, 

orig. proceeding).

In K.K.C., a nonparent filed an original SAPCR asserting standing under subsection (a)(9). 

K.K.C., 292 S.W.3d at 791. The nonparent lived with the child and the child’s mother from 2001 

until 2008 and produced extensive evidence describing his relationship with the child. See id. In 

addressing the nonparent’s standing, the Beaumont court of appeals focused on whether the 

nonparent had “control” of the child as required by the statute. 

The court first noted that the fundamental liberty interest of parents in the “care, custody, 

and control” of their children has long been recognized by the United States Supreme Court and 

Texas courts. See id. at 792 (citations omitted). The court then stated that, “so long as a parent 

adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State 

to inject itself into the private realm of the family to further question the ability of that parent to 

make the best decisions concerning the rearing of that parent’s children.” Id. at 792 (quoting 
6

Troxel v. Granville, 530 U. S. 57, 68-69, 120 S. Ct. 2054, [2061,] 147 L. Ed. 2d 49 (2000)).4 The 

court recognized that the legislature intended for Texas statutes to be in compliance with the United 

States and Texas Constitutions and that a court construes a statute to give effect to the legislature’s 

intent as expressed in the actual statutory language. See id. Thus, the court reasoned, section 

102.003(a)(9) must be applied in a manner that preserves the constitutional liberty interest retained 

by a fit parent who is adequately caring for his child. See id. at 792-93. 

The court opined that, in light of these principles, “‘control,’ as used in subsection (a)(9), 

must mean something more than the control implicit in having care and possession of the child if 

the word is to be given effect and treated as more than surplusage.” Id. at 792. Therefore, “[t]he 

word must be understood in the context of the rights, duties, and responsibilities of a parent.” Id. 

The court then concluded that “control” refers to “the power or authority to guide and manage, and 

includes the authority to make decisions of legal significance for the child.” Id. at 793. Applying 

this definition, the court, with one judge dissenting, held that the nonparent did not have standing. 

Id. at 794. 

The Fort Worth and San Antonio courts of appeals have followed K.K.C. See In the 

Interest of H.S., No. 02-15-00303-CV, 2016 WL 4040497, at *5 (Tex. App.–Fort Worth July 28, 

2016, no pet. h.) (mem. op.) (modification suit); In the Interest of N.I.V.S., No. 04-14-00108-CV, 

2015 WL 1120913, at *5 (Tex. App.–San Antonio Mar. 11, 2015, no pet.) (mem. op.) (original 

SAPCR). 

Legal Control Not Required

A case decided by the Austin court of appeals represents the contrary line of authority. See 

generally Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523 (Tex. App.–Austin 

2011, no pet.). In Jasek, the Texas Department of Family and Protective Services (DFPS), as sole 

managing conservator, placed two children with the Jaseks under a “Placement Authorization.” Id. 

at 527. The authorization imposed certain duties and limitations on the Jaseks and authorized 

DFPS, “at its sole discretion,” to remove the children from the Jaseks “at any time, subject to 

applicable court orders.” Id. Two years later, DFPS removed the children, and the Jaseks 

requested to be appointed the children’s joint managing conservators. Id. 

 

4

In Troxel, a grandparent visitation rights case, the Supreme Court held that a “breathtakingly broad” Washington 

state visitation statute was unconstitutional as applied. Troxel, 530 U. S. at 66, 73, 120 S. Ct. at 2061, 2064. We 

address Troxel in more detail later in this opinion.
7

As pertinent here, DFPS asserted the Jaseks could not establish standing under section 

102.003(a)(9) because they did not have legal control of the children during the placement. Id. 

The trial court agreed with DFPS, but the appellate court did not and reversed and remanded. Id. 

at 527, 538. In its analysis, the court conducted an extensive examination of the plain language of 

subsection (a)(9), the definitions and usage of the terms “actual” and “control,” and existing case 

law. Id. at 532-37. 

The court first noted that the adjective “actual” modifies each of the three nouns that follow 

it: care, control, and possession. Id. at 532. Therefore, a person asserting standing under 

subsection (a)(9) must show that she has had actual care, actual control, and actual possession of 

the child for the required time period. Id. The court then stated that “actual” is a commonly used 

word that means “existing in fact or reality.” Id. at 532 (quoting WEBSTER’S THIRD NEW INT’L 

DICTIONARY 22 (2002)). This definition, the court observed, is consistent with the use of the word 

“actual” in legal contexts to indicate something that exists in fact as opposed to “constructive”—

“something that exists by virtue of a legal imputation or fiction, but not existing in fact.” Id. (citing 

BLACK’S LAW DICTIONARY 40 (9th ed. 2009)). And in accordance with the established principles 

of statutory construction, the court presumed that “the Legislature was aware of such usage and 

connotation, and deliberately intended that meaning, when it made ‘actual’ care, control, and 

possession the basis for standing under family code section 102.003(a)(9).” See id. at 533 

(citations omitted). The court also cited three definitions for “control”: (1) “[p]ower or authority 

to manage, direct, govern, administer, or oversee”; (2) “power or authority to guide or manage: 

directing or restraining domination”; and (3) “power to govern the management and policies of a 

person.” Id. (citing American Fid. & Cas. Co. v. Traders & Gen. Ins. Co., 160 Tex. 554, 334 

S.W.2d 772, 775 (1960); WEBSTER’S THIRD NEW INT’L DICTIONARY 496 (2002); BLACK’S LAW 

DICTIONARY 378 (9th ed. 2009)). 

Based upon the definitions of “actual” and “control,” the court concluded that “actual 

control,” as used in section 102.003(a)(9), means “the actual power or authority to guide or manage 

or the actual directing or restricting of the child, as opposed to legal or constructive power or 

authority to guide or manage the child.” Id. In the court’s view, “these words reflect the 

Legislature’s intent to create standing for those who have, over time, developed and maintained a 
8

relationship with a child entailing the actual exercise of guidance, governance[,] and direction 

similar to that typically exercised by parents with their children.” Id. 

The Austin court found only two cases addressing “actual control” separately rather than 

in combination with “care” and “possession”—In re Kelso, 266 S.W.3d 586 (Tex. App.–Fort 

Worth 2008, orig. proceeding), and K.K.C., which we discussed earlier.5 See Jasek, 348 S.W.3d 

at 548. After examining each case, the court respectfully disagreed with its sister courts’ 

conclusions that “actual control” exists only when a parent or conservator has relinquished rights 

over a child (Kelso) or when the person asserting standing has the ultimate legal authority to control 

the child (K.K.C.). See id. at 534-37. Specifically, the court noted that nothing in section 

102.003(a)(9) imposes either requirement. Id. at 535. Further, the court concluded that limiting 

standing under subsection (a)(9) to those having the ultimate legal right to control a child would 

require reading words into the text “that are not there” and render the word “actual” either 

superfluous or meaningless. See id. 

Several other courts of appeals have applied the Jasek definition of “actual control.” See

In the Interest of K.G., No. 05-14-01171-CV, 2016 WL 3265215, at *6 (Tex. App.–Dallas June 

13, 2016, no pet.) (mem. op.); In the Interest of K.S., No. 14-15-00008-CV, 2016 WL 1660366, 

at *4 (Tex. App.–Houston [14th Dist.] Apr. 26, 2016, pet. denied) (op.); Interest of B.A.G., No. 

11-11-00354-CV, 2013 WL 364240, at *10 (Tex. App.–Eastland Jan. 13, 2013, no pet.) (mem. op.); 

In the Interest of K.K.T., No. 07-11-00306-CV, 2012 WL 3553006, at *4 (Tex. App.–Amarillo 

Aug. 17, 2012, no pet.) (mem. op.). 

LANKFORD AND GRESHAM’S ARGUMENTS

Lankford and Gresham maintain that the K.K.C. “legal control” standard is necessary to 

protect a parent’s liberty interest in the care, custody, and control of his children. They also argue 

that if the Jasek definition of “control” is correct, section 102.003(a)(11)’s requirement that the

parent be deceased would be superfluous. 

Protection of parental constitutional rights

 

5 Although the Austin court characterizes these cases as addressing “actual control,” neither case considered the word 

“actual” in its discussion. Nor do Lankford and Gresham address it here.
9

Lankford and Gresham point out that, in a proceeding to modify a managing 

conservatorship order, there is no presumption that appointment of a parent is in the best interest 

of the child. Thus, they characterize standing as “the one bulwark Texas law affords” to protect a 

parent’s fundamental constitutional right to direct the upbringing of his children. Accordingly, 

they conclude that in the absence of the parental presumption, the “legal control” requirement must 

be imposed to protect the parent’s rights when modification of a conservatorship order is sought. 

They maintain further that section 102.003(a)(9) cannot be in compliance with the United States 

and Texas Constitutions, as intended by the legislature, unless it complies with Troxel v. Granville.

1. The parental presumption. The presumption that the best interest of the child is served 

by awarding conservatorship to the child’s parent is deeply embedded in Texas law. In re V.L.K., 

24 S.W.3d 338, 341 (Tex. 2000). This presumption is based upon the natural affection usually 

flowing between parent and child. Id. (citing Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 

(1955)). The presumption is codified in the chapter of the family code that governs original 

SAPCRs, but not in the chapter that governs modification suits. See TEX. FAM. CODE ANN.

§§ 153.131(a) (West 2014), 156.001-.105 (West 2014 & Supp. 2016). The Texas Supreme Court 

has determined that, because the legislature did not express its intent to apply the presumption in 

modification suits, courts should not apply the presumption in those cases. V.L.K., 24 S.W.3d at 

343. 

By requiring application of the parental presumption in original SAPCRs but not in 

modification suits, the legislature balanced the rights of the parents “in the care, custody and 

control of their child” and the best interest of the child, which includes the child’s interest in 

stability. See In re C.A.M.M., 243 S.W.3d 211, 216 (Tex. App.–Houston [14th Dist.] 2007, pet. 

denied) (citation omitted). When those two interests compete and the legislature has authorized 

modification in the circumstances presented, the child’s interest in stability prevails over the 

parent’s right to primary possession. See id. Lankford and Gresham argue, in substance, that 

because this balance favors the child, Troxel mandates a narrow construction of section 

102.003(a)(9), i.e., the “legal control” requirement, to protect the parent. 

2. Troxel v. Granville. The dispute in Troxel arose between a mother and her children’s 

paternal grandparents after the mother sought to limit the grandparents’ visitation with the children. 

The grandparents petitioned for visitation rights under a Washington state statute allowing “[a]ny 
10

person” to petition the court for visitation rights “at any time.” Troxel v. Granville, 530 U.S. 59, 

61, 120 S. Ct. 2054, 2057, 147 L. Ed. 2d 49 (2000). A court could grant the requested visitation 

rights “whenever visitation may serve the best interest of the child whether or not there has been 

any change of circumstances.” Id., 530 U. S. at 61, 120 S. Ct at 2057-58. Ultimately, a plurality 

of the Court held that, as applied, the statute violated the Due Process Clause because it infringed 

on a parent’s right to make decisions concerning the care, custody, and control of the parent’s 

children. Id., 530 U. S. at 66-67, 120 S. Ct. at 2061. 

The Court described the Washington statute as “breathtakingly broad.” Id., 530 U. S. at 

67, 120 S. Ct. at 2061. Moreover, the Court expressed concern that the language “effectively 

permit[ted] any third party seeking visitation to subject any decision by a parent about visitation 

of the parent’s children to state-court review.” Id. As one of a combination of factors that 

compelled its conclusion, the Court noted that the grandparents did not allege, and no court had 

found, that the children’s mother was an unfit parent. Id., 530 U. S. at 68, 120 S. Ct. at 2062. This 

was important, the Court explained, because “there is a presumption that fit parents act in the best 

interests of their children.” Id. 

The Court then made the statement quoted in K.K.C.: “[S]o long as a parent adequately 

cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject 

itself into the private realm of the family to further question the ability of that parent to make the 

best decisions concerning the rearing of that parent’s children.” Id., 530 U. S. at 68, 120 S. Ct. at 

2016; see K.K.C., 292 S.W.3d at 792. According to Lankford and Gresham, this statement supports 

their conclusion that section 102.003(a)(9) cannot pass constitutional muster if the Jasek definition 

of “control” is correct. 

We note, however, that the order under review in Troxel was an original determination of 

grandparent visitation rights. Thus, the Court did not address modification of conservatorship 

orders. Additionally, the parental presumption applied in Troxel. But when modification of 

conservatorship is sought, Texas courts do not apply the parental presumption, and no finding of 

parental unfitness is required. See TEX. FAM. CODE ANN. § 156.101(a) (West 2014); V.L.K., 24 

S.W.3d at 343. The statement in Troxel explains the effect of the parental presumption absent a 

finding that a parent is unfit. It does not call into question the legislature’s decision not to apply 

the parental presumption in suits to modify conservatorship orders. And the Court did not issue 
11

any directives or formulate any general guidelines for conferring standing when the parental 

presumption does not apply.6 Therefore, Troxel does not inform our analysis.

“Stepparent Standing”

A person has standing under family code section 102.003(a)(11) to request modification of 

a conservatorship order if the child and her parent resided with the person for at least six months 

ending not more than ninety days preceding the date the petition is filed and the parent is deceased 

when the petition is filed. TEX. FAM. CODE ANN. §§ 102.003(a)(11) (West Supp. 2016), 156.002(b) 

(West 2014). Lankford and Gresham point out that under subsection (a)(11), a stepparent can 

obtain standing only if the child’s parent is deceased. They argue that if Smith’s interpretation of 

section 102.003(a)(9) (the Jasek definition of “actual control”) is correct, stepparents will always 

rely on (a)(9) instead of (a)(11) to establish standing when a child’s parent dies. Lankford and 

Gresham conclude their argument with the following statement from K.K.C.: “We doubt the 

Legislature would have intended section 102.003(a)(9) to permit an ‘end run’ around specific 

restrictions in the Code.” See K.K.C., 292 S.W.3d at 794. 

Subsection (a)(11) was designed as a “stepparent” statute, affording standing to a 

stepparent who has helped raise a child and the stepparent’s spouse (the child’s parent) dies. 

Doncer v. Dickerson, 81 S.W.3d 349, 358 (Tex. App.–El Paso 2002, no pet.). As enacted, however, 

subsection (a)(11) is not limited to stepparents and, instead, confers standing on “a person” with 

whom the child and the parent resided for the requisite time prior to the parent’s death. See TEX.

FAM. CODE ANN. § 102.003(a)(11). See id. Nothing in (a)(11) makes this the exclusive subsection 

under which standing can be obtained after the death of a child’s parent. See id. 

Subsection (a)(9) affords standing for those who have developed and maintained a 

relationship with a child over time. E.G.L., 378 S.W.3d at 547; In re Y.B., 300 S.W.3d at 4. This 

relationship comprises “actual care, control, and possession of the child.” See TEX. FAM. CODE 

ANN. § 102.003(a)(9). Stepparents are not excluded from this subsection, and the fact that the 

child’s parent is deceased does not disqualify “a person” from seeking standing under this 

subsection. See id. 

 

6 One court has observed that “the tenor of the Troxel opinion suggests a reluctance to place strict mandates on state 

legislatures; the Court balked only at what it called the ‘sweeping breadth’ of the Washington nonparental visitation 

statute and the ‘application of that broad, unlimited power in this case’ but did not dictate any bright-line rules for 

statutes affecting parental rights.” In re S.A.H., 420 S.W.3d 911, 920 (Tex. App.–Houston [14th Dist.] 2014, no pet.).
12

Based upon the plain language of subsections (a)(9) and (a)(11), a stepparent or any other 

person can assert standing to seek modification of a conservatorship order under (a)(9), (a)(11), or 

both when a parent is deceased. In other words, (a)(9) and (a)(11) are not mutually exclusive. See 

Jasek, 348 S.W.3d at 535. 

A person seeking standing when a child’s parent has died must show only that the child 

and the child’s parent resided with the person for the required time period. See TEX. FAM. CODE 

ANN. § 102.003(a)(11). Lankford and Gresham implicitly argue that the residence requirement of 

(a)(11) is more restrictive than Jasek’s “actual control” requirement, but do not explain how. 

Further, they do not provide any substantive analysis to support their conclusion that application 

of the Jasek definition of “actual control” in (a)(9) will render subsection (a)(11)’s death 

requirement superfluous. Therefore, we do not address this argument. See TEX. R. APP. P. 52.3(h); 

In re Fitzgerald, 429 S.W.3d 886, 897 (Tex. App.–Tyler 2014, orig. proceeding) (holding issue 

waived for inadequate briefing and stating that Rule 52.3(h) “requires that the relator provide 

substantive legal analysis as well as citations to authority supporting his legal arguments and 

conclusions”).

Summation

Troxel does not cast doubt on the constitutionality of section 102.003(a)(9) if the Jasek 

definition of “actual control” is applied. And we do not address Lankford and Gresham’s argument 

relating to the effect on subsection (a)(11) if the Jasek definition of “actual control” applies. 

Further, we conclude that, had the legislature intended “control” to mean “legal control” instead 

of “control” in its ordinary sense, it could easily have defined it as such. Or it could have defined 

“actual control” to mean “legal control.” But it did neither. Therefore, we agree with the reasoning 

in Jasek and hold that its definition of “actual control” reflects the legislature’s intent when it 

enacted the “control” requirement of section 102.003(a)(9). Accordingly, we also hold that the 

trial court did not abuse its discretion in applying the Jasek definition of “actual control” to 

determine whether Smith had standing under subsection (a)(9). And Lankford and Gresham do 

not alternatively contend that, if the Jasek definition is correct, the trial court misapplied it to the 

facts at hand. 
13

CONCLUSION

Lankford and Gresham have not established that the trial court incorrectly determined the 

law or misapplied the law to the facts. Therefore, they have not shown that the trial court abused 

its discretion by denying the pleas to the jurisdiction and motion to dismiss or in rendering 

temporary orders appointing Smith as a joint managing conservator of T.D.L. Accordingly, we 

deny Lankford and Gresham’s petition for writ of mandamus. 

JAMES T. WORTHEN

 Chief Justice

Opinion delivered August 24, 2016.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
14

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 24, 2016

NO. 12-15-00149-CV

CHARLES DWAYNE LANKFORD AND ROBERTA GRESHAM,

Relators

V.

HON. JOE LEE REGISTER,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by 

CHARLES DWAYNE LANKFORD AND ROBERTA GRESHAM, who are the relators in 

Cause No. CV-35,254-01-11, pending on the docket of the County Court at Law No. 1 of Angelina 

County, Texas. Said petition for writ of mandamus having been filed herein on June 4, 2015, and 

the same having been duly considered, because it is the opinion of this Court that a writ of 

mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the 

said petition for writ of mandamus be, and the same is, hereby denied.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.